So many areas of the law are difficult to process when they involve cruelty. This, arguably, no where more so than in family law and when inflicted by one spouse upon the other.

The response of the criminal law, though several centuries late, has been quick to address spousal violence with an "arrest first, ask questions later" approach. But what the criminal law cannot adequately address is the emotional and psychological abuse so many wives (and the occasional husband) faces daily. This type of abuse kills just as readily - and if not the body then the mind ... the soul.

 

The Bugaboo

Sorting out spousal support can be a challenge in the aftermath of a marriage infected with violence. The first bugaboo is §15.2(5) of the federal Divorce Act (2012), under spousal support:

"... the court shall not take into consideration any misconduct of a spouse in relation to the marriage."

But the law does not end there. There is a way over this apparent hurdle as set out by the Saskatchewan Court of Appeal in Martin v Martin:

"There was evidence supporting the finding of the marriage's abusive nature and its impact on Mrs.Martin's condition.... The trial judge was not considering Mr. Martin's conduct, which she would not be permitted to do, but rather she was looking at the economic consequence of that conduct on Mrs.Martin. From all the evidence it appears Mrs.Martin was traumatized by that conduct and would need time to overcome the effect of it."

legal uncertainty signVogel v Vogel is also relevant. Family law professor James Mcleod's annotation published with Vogel v Vogel in the law reports, is directly on point:

"The interesting point in Vogel v. Vogel is (the Court's) willingness to take into account spousal conduct in deciding whether the requisite causal connection exists. Support is not being awarded because the payor is a "bad person" or because the payee is a "good person".

"The fact is that the conduct of the payor (without making any moral judgments) adversely affected the payee in an economic sense. Courts consider the economic effects of conduct in distributing matrimonial property. There is no reason it should not be considered in support cases. Courts are not considering "misconduct". Nor are they considering conduct as an end in itself. They are merely examining the pattern of the marriage to see if the parties' interaction has caused an economic dependency or disadvantage."

But the most important statement of the law - impressive gobbledygook - but still, on the side of the angels, is this contribution of Justice Binnie of the Supreme Court of Canada in Leskun:

"There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant to the factors which must be considered in determining the right to support, its duration and its amount.  The policy of the (Divorce Act) however, is to focus on the consequences of the spousal misconduct not the attribution of fault."

The words "... a distinction between the emotional consequences of misconduct and the misconduct itself" seems like a recipe for legal confusion to occupy lawyers for decades.

Luckily, Justice Deschamps of the same court re-rendered the discrete principle of law that Justice Binnie awkwardly articulated, in Bruker v. Marcovitz, at ¶141 (albeit in dissent but not on this point):

"If one spouse becomes dependent because of the other spouse’s conduct, the court can have regard to all the circumstances, including that state of dependence, and award support based on the parties’ resources and needs."

Walking With Animals

That initial distinction made, we look, now, at real life examples.

We start our walk through the park with Epp v Epp because it turned an apparent impossible case into judgment for spousal support; impossible because the recipient of alimony suffered from fibromyalgia, a disease not normally associated with emotional triggers.

family violence © EJ White - Fotolia.comFrom the judgment:

"The defendant's evidence is that during his alcoholic years the plaintiff abused her emotionally, verbally and on occasion, physically. She claims the emotional and verbal abuse continued after he stopped drinking....

"The onset of (fibromyalgia) commenced in 1993 during the currency of the marriage relationship. The accumulated stress from the plaintiff's conduct toward the defendant in combination with her obsessive-compulsive personality pre-disposed her to fibromyalgia. It was a contributing factor.

"The defendant's fibromyalgia has totally disabled her from working at the normal duties of a registered nurse since 1995. That inability, in part, arises from the marriage and marriage breakdown. The defendant, absent her fibromyalgia, would now be capable of self-sufficiency. The present degree of her disability impairs her self-sufficiency."

 

Even though Ms Jenica Epp was in receipt of $2,160 in monthly disability benefits, Justice Holmes of the British Columbia Supreme Court still held Mr. Reynold Epp to $800 monthly spousal support.

In Anderson v Anderson, similar, extremely disturbing allegations of ongoing emotional abuse by a husband:

"The wife made many specific allegations of actions on the part of her husband over almost the entire period when the parties lived together, which, if true, strongly support the finding that the treatment she received from her husband has left her with a serious psychological condition. She described her life with her husband as living with a time bomb. She said she never knew what was going to happen due fundamentally to his drinking and physical and verbal abuse. She said he was always very violent when drinking and often threatened her. She related one occasion when he told her he would kill her and chop up her body and put it in a blender. He told her if he could not have her, no one else would. She said she always was in fear of him — that for 17 years she never slept through the night. She testified that he would become involved with other women and would not give them up. She said he absolutely refused to allow her family members, including her parents, in the marital home. The wife said that all this has made her very tense and subject to anxiety and fear and the inability to take stress of any kind. She is presently taking prescription medication daily."

The husband offered another version of events but the evidence of the wife was preferred by Justice Wright of the Manitoba Court of Queen's Bench, who also benefited from expert evidence to the effect that Ms Anderson:

"... suffered significant psychological problems as a result of her abusive marital relationship."

The Way We Were

Even though the law and the Courts no longer issue spousal support awards on a punitive basis, that does not mean that a woman (or man) who is emotionally battered by the ex and who has her job prospects cut from under her by that emotional abuse (if not a permanent mental disorder), cannot have that aggravating factor taken into account in spousal support cases.

The claim must be presented intelligently and, preferably, with the support of some medical evidence.

Hit those nails on the head and you will find an interested if not receptive Court.

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